Letters of engagement: a cautionary tale

Rule of Professional Conduct 1.5(b) requires that letters of engagement set forth the scope of engagement. As routine as describing the scope of engagement may be, there is good reason to be thoughtful about it because it can be an early step down the road to a malpractice claim, which is what happened in Baruno v. Slane, 2013 Conn. Super. LEXIS 1300, 2013 WL 3315418 (Conn. Super. Ct. June 6, 2013)

In Baruno clients retained a lawyer to institute legal proceedings “concerning the adverse possession claim which my neighbors have made against me.” (Quoted language taken from letter of engagement).  After determining that there was a good faith basis for bringing the lawsuit, the lawyer did what the client had asked him to do. The goal was to stop neighbors from making improvements to a parcel of land. The problem turned out to be that adverse possession was the wrong theory of the case; the land in question was subject to a restrictive covenant that prohibited the making of any improvements on the land, a fact unknown to the lawyer at the time he wrote the letter of engagement.  From the start the lawyer’s focus was on adverse possession, which fit the facts of the case as described by the client. The property being in Greenwich the rest of the case is a sad, expensive story. After listening to expert testimony, the court found that the lawyer had a duty to examine the land records, including the deed to the neighbors’ property where he would have found the restrictive covenant. The court awarded damages of $620,000, including a fee forfeiture in the amount of $10,386.

Moral of the story:  be thoughtful about scope of engagement and think twice before basing your approach to solving the client’s problem solely on the client’s description and assessment of the facts.

Dating, Divorce and the Rules of Professional Conduct

Source: Disciplinary Counsel v. Zelotes, 062813 CTSUP, FSTCV126013168S

Zelotes, a lawyer, and and his girlfriend Sharon met another couple, Michael and Terry Aliano, in a jazz bar in New London. The Alianos ‘were having some problems in their marriage and were in New London to try to reconcile……” “The defendant …[and] his girlfriend ….struck up a conversation with the Alianos. The couples exchanged phone numbers and began seeing each other as couples, in a social capacity. The defendant became friendly with Michael and Terry and socialized together as a threesome. Thereafter, in June of 2010 the defendant started seeing Terry alone, going on walks in the park together, going to movies, for drinks and began “dating.”

The defendant had an “intimate” relationship with Terry. So far, no problem ….. under the Rules of Professional Conduct at least. But then Zelotes formed the belief that “he had an obligation to help her [Terry] proceed with her divorce, and promote her welfare, and make her a happier person.”

On more than one occasion, their date consisted of sitting close together at the kitchen island in Terry and Michael’s marital home, (without the presence of Michael), holding hands, sharing a glass of wine, with candles, music and dimmed lights. Their first kiss came on such an occasion on September 24th, 2010.” The defendant filed his appearance on behalf of Terry in the Aliano divorce case three days later on September 27, 2010.” Now there is, in my opinion, a big problem under the RPC.

Sometime in December of 2010, Michael came home earlier than expected; and and the defendant and Terry were again sitting together at the kitchen island with the same ambiance and sharing wine. The defendant described Michael’s demeanor (not surprisingly) as antagonistic.” Now there was another problem. “Michael filed a motion in the divorce case to disqualify the defendant from representing Terry in the matter.” The motion was granted. “After the disqualification the defendant and Terry ceased their intimate relationship and presumably their “dating.”

The presentment was based in part on Rule 1.8(J), which prohibits sexual relations with a client unless the relationship predates the representation. The defendant denied any sexual relations and the court was unable to find one way or the other on that issue.

The Court based its decision to impose discipline on Rules 1.7(a)(2) (conflict of interest based on personal interest of the lawyer) and Rule 8.4(4) (conduct prejudicial to the administration of justice).

Disciplinary Counsel sought a five year suspension. The Court suspended Zelotes for five months, citing as aggravating circumstances (prior) disciplinary sanction (in 2005), lack of remorse, and failure to perceive the risks involved in his activities….” Mitigating factors include remoteness of his disciplinary sanction, and a misplaced belief that his actions were of a benevolent nature and inured to the benefit of Terry Aliano.”

No remorse. An inability to perceive the risks involved in his activities. What risks? Put yourself in the shoes of Michael and Terry. Your marriage has some problems. You go on a date to a jazz club as part of an effort to reconcile, meet a nice couple, exchange phone numbers and then the four of you begin socializing. Then the socializing begins to involve only three people, Michael, Terry and Zelotes. Friends. And then, secretly, Terry and Zelotes begin dating using Michael and Terry’s home for intimate get togethers.. Might that have an effect on Michael’s and Terry’s efforts to reconcile? Assume the marriage was irretrievable, there remains the divorce process, an example of the administration of justice.  Might the secret relationship between Terry and Zelotes make the divorce – the administration of justice – more acrimonious, more difficult, stressful, expensive. Certainly Michael was betrayed by an apparent friend. And then imagine that that mutual friend files an appearance on Terry’s behalf, morphing from apparent friend, to betrayer to adversary in the divorce case. Zelotes engaged in a sequence of events that was likely to make Terry and Michael’s divorce all the more difficult. It is hard to square that sequence of events with responsible lawyering. Even assuming Zelotes believed with all his heart that he was doing a good thing, his belief was unreasonable and his decision to represent Terry was, in the Court’s opinion, a clear violation of the Rules of Professional Conduct. Moral of the story: combing dating with lawyering should raise a red flag especially when the lawyering involves representing the object of one’s affections in her divorce.

Draft minutes of May meeting of Superior Court Rules Committee describe proposed changes affecting reinstatement and screening and add “electronic communications” at point various points again emphasizing the application of the RPC to digital data

The link to the daft minutes is here.

For proposed changes concerning the procedure for reinstatement following a suspension of a year or more, and for disbarment for theft of client funds see item 3 and Appendix B. In general the proposed changes tighten up the process of reinstatement for lawyers who (a) have been suspended for a year or more, or (b) have been disbarred or resigned – five year waiting period or (c) been disbarred for theft of client funds – twelve year waiting period plus other conditions including full restitution.

For proposed changes to the RPC 1.0 (Terminology)  and 1.10 (Imputation of Conflicts: General Rule) see item 12 and Appendix H.  The proposed changes add “electronic communications” to the definition of “Writing and written” and to the commentary on the definition of screening. The proposed changes of Rule 1.10 are intended to make Connecticut’s Rule 1.10 consistent with ABA Model Rule 1.10.

ABA Standards for Imposing Lawyer Sanctions

At its midyear meeting in 2012, the ABA House of Delegates reaffirmed the ABA Standards for Imposing Lawyer Sanctions as originally adopted in February 1986 and amended February 1992. In addition, the House of Delegates rescinded its adoption of the commentary to the standards. Click here for the resolution as adopted followed by the Standards.

See in particular the section starting on page 59

The Connecticut ACLU has released its 2013 Guide to Privacy Rights in Connecticut. (Thank you ACLU CT!). From the perspective of a lawyer’s ethical obligations to protect client information one may wish to turn to page 59 on which begins the section entitled Personal Identifying Data Held By Private Companies. I haven’t looked yet to see if there is an exclusion for law firms (doubtful) or for firms smaller than a certain size (doubtful too). Technology in general and data protection in particular have added layers of complexity to the practice of law that one ignores at one’s peril.

At the Cyber Risk seminar held during the Annual Meeting last Monday (June 17, 2013) one of the panelists observed that HIPPA applies to law firms in possession of client health records – personal injury firms, both plaintiff and defense, especially med mal, come to mind.

It’s hard to imagine how lawyers – other than those at the largest firms perhaps or at firms specializing in privacy law- can afford to understand  all the “environmental risks”  that face the practicing lawyer. By environmental risks I mean laws that create risks other than the risk of malpractice in the traditional sense, i.e. missing a statute of limitations, for example. Now one needs to worry about data security in a way and to a degree that simply wasn’t necessary when client data was stored in basements, garages and other musty places that few would ever want to break into. Now it seems there is a long line of parties interested in accessing digital data for any number of reasons.

As efforts are made to com-modify and thus simply the production of legal services, making them less expensive, the environment in which law is practiced is becoming more complex and presumably more expensive.